Congress Poised to Pass Flawed Homeland Security Measure

CONGRESS
PASSES HOMELAND SECURITY MEASURE, AND DOES NOT GET IT RIGHT: Immigration Experts
Say

Washington, D.C.- Congress is poised to pass legislation that would create a
Department of Homeland Security that includes provisions that would dramatically
change our immigration functions. “While reforming our immigration functions are
essential to help make us safer, H.R.5710 largely does not get it right,” said
Jeanne Butterfield, Executive Director of the American Immigration Lawyers
Association (AILA). “This bill will impede efficient, effective, and fair
adjudications and enforcement practices that are essential to our economy, to
reuniting families, and to our national security -- so that we know who is here
and keep out those who mean us harm. ” “An effective immigration system is
crucial to our national security,” commented Ms. Butterfield. “And a fair
immigration system is fundamental to who we are as a people and a nation of
immigrants.”

AILA long has called for the reorganization of our
immigration functions based on principles that have been acknowledged to be
central to effective reform. The principles are: coordinate the separated
service and enforcement functions, place at the helm a leader with the authority
to develop and administer immigration policy for the entire agency, and
adequately fund our immigration functions.

Unfortunately, in contrast to
the Homeland Security measure that passed the Senate Governmental Affairs
Committee, H.R. 5710 includes several extremely troubling provisions. Most
importantly, the bill fails to provide for a high-level official who is focused
on our nation’s immigration policy, relegates immigration services to a bureau
that lacks its own Under-Secretary, provides little or no coordination between
immigration enforcement and services, and fails to adequately protect the
important role of our immigration courts.

“Effective reform of the INS
and an effective Department of Homeland Security require that our immigration
functions be both elevated within the new department and reformed,” said Ms.
Butterfield. “This bill does neither. We cannot fracture the immigration agency
into completely separate pieces as this measure does -- with enforcement
swallowed up in one huge division and services in another, and expect
coordination, accountability, or adequate attention to the immigration agency’s
critical service and enforcement functions.”

With regard to our
immigration courts, this bill, while maintaining the Executive Office for
Immigration Review (EOIR) within the Department of Justice, does not recognize
the need for checks and balances in our immigration system. The bill codifies
the existence of the courts and the Attorney General’s authority to control
them, but fails to address key concerns such as the role and independence of the
courts and the impartiality of the judicial process. “By failing to include
language that provides a statutory framework for the role of immigration
courts,” said Ms. Butterfield, “H.R.5710 has missed an important opportunity to
reform our immigration courts to ensure efficiency and accountability, restore
public confidence, and safeguard due process.” “This is especially important,”
she continued, “because in the majority of immigration cases, the immigration
courts provide the only opportunity to review the decisions of low-level
immigration officers. Immigration judges offer critical protections against
mistake or malfeasance.”

H.R. 5710 also raises other concerns with regard
to the granting of visas, and excludes asylum protections and provisions
reflecting the need for special treatment of unaccompanied minors that had been
in the Senate committee-passed bill. In addition, the bill creates a weak civil
rights office lacking the power to investigate violations committed by the
Department of Homeland Security.

H.R. 5710 does include two helpful
provisions. One charges the department with ensuring that the overall economic
security of the United States is not diminished by efforts, activities and
programs aimed at securing the homeland, and that the functions of the agencies
and subdivisions within the Department that are not directly related to securing
the homeland are not diminished or neglected. The other appoints a Special
Assistant to the Secretary who will be responsible for creating and fostering
strategic communications with the private sector to enhance the department’s
primary mission. This Special Assistant would create and manage private sector
advisory councils to advise the Secretary on homeland security policies,
regulations, processes and actions that affect participating industries and
associations.

“H.R. 5710 fails to respect our tradition as a nation of
immigrants, our dedication to respecting individual rights preserved by the
Constitution, and the importance of immigrants to our internationally based
economy”, said Ms. Butterfield. “We need to recognize that the goals of a new
Homeland Security Department cannot be achieved until our immigration laws are
reformed to make legality the norm.”

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Founded in 1946, AILA is a nonpartisan, nonprofit organization that
provides its Members with continuing legal education, information, and
professional services. AILA advocates before Congress and the Administration and
provides liaison with the INS and other government agencies. AILA is an
Affiliated Organization of the American Bar
Association.